William McDonagh v. Department of Correction - Legal Division (SPR 20192355)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 5, 2019 SPR19/2355 Nelson Alves Director Policy Development & Compliance Unit Department of Correction 21 Needham Street Norfolk, MA 02506 Dear Mr. Alves: I have received the petition of William McDonagh appealing the fee estimate of the Depaitment of Correction (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on March 18, 2019, Mr. McDonagh requested "[t]he last two audits done and completed at the North Central Correctional Facility located at 500 Colony Rd. Gardner, MA 01140 ... also provide any follow up reports." On November 13, 2019, the Department responded to Mr. McDonagh's request with a fee estimate. Unsatisfied with this response, Mr. McDonagh petitioned this office SPRl 9/02355 was opened as a result. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § IO(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer shall provide written, itemized, good faith estimate). Once fees are paid, a records access officer must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § IO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § lO(d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § lO(d)(ii). Where appropriate, agencies may include as paii of the fee an hourly rate equal to or less than One AshbmionPlace, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Nelson Alves SPR19/2355 Page 2 December 5, 2019 the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The Department's November 13111 Response In the Depaiiment's November 13th response, it explains the estimate "$112.05 is necessary to process this production. This amount includes: (i) $12.05 for copies of 241 pages at $0.05 per page and $100.00 for four hours of employee time at $25.00 an hour, excluding the first four hours." The Depatiment indicates "[t]his time is necessary for segregating and redacting records under Exemption (n) ... " I find the Department must explain why eight hours will be needed to produce the records. Specifically, it must describe how much time will be needed to search for the records versus how much time will be needed to segregate and/or redact. The Department must also explain whether the redactions are required by law. See G. L. c. 66, § lO(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv)); 950 C.M.R. 32.06(4)(g). Conclusion Accordingly, the Department is ordered to provide Mr. McDonagh a revised response in a manner consistent with the Public Records Law, its Regulations, and this order within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Supervisor of Records cc: William McDonagh